Obama admin eyes new contraception compromise, post-Hobby Lobby

It’s been a couple of months since the Supreme Court’s conservatives, in a 5-4 ruling, sided with Hobby Lobby. In the case, the private, for-profit corporation sought an exemption from the Affordable Care Act’s contraception policy, and the Republican-appointed justices agreed.

But as a matter of public policy, that left an unresolved problem in need of a remedy: employees at “closely held” companies run by religious conservatives still need access to birth control. It was only a matter of time before the Obama administration unveiled a new set of rules to guarantee access for these affected workers.

The new policies are intended to fill gaps left by two Supreme Court moves: The landmark Hobby Lobby decision saying contraceptive coverage violated the religious liberty of a for-profit corporation, and a preliminary order in Wheaton College v. Burwell. With today’s regulations, employees of for-profit corporations like Hobby Lobby will be able to access an “accommodation” where the insurer directly provides the cost-free coverage with no financial involvement by the employer. That accommodation was originally limited to religiously-affiliated nonprofits like Little Sisters of the Poor; houses of worship are fully exempt.

For nonprofits like Wheaton College that object to even that accommodation – which involves them signing a form to their insurer – the Obama administration has created a new accommodation to the accommodation. (Yes, it gets complicated.)

Irin, of course, is correct. It does get complicated.

The good news, under the newly unveiled rules, Americans will still have the contraception access they deserve, regardless of their boss’ religious beliefs. The bad news is, navigating the process, designed to accommodate anti-contraception private employers, isn’t easy.

At a company like Hobby Lobby, for example, this would mean that the owners would notify the government of their objection to contraceptives. The Obama administration would then pass that information along to Hobby Lobby’s health insurance plan, which would be responsible for paying for the birth control coverage.

Or put another way, to make everyone feel better, under this new compromise the anti-contraception employer would write a letter to the Department of Health and Human Services, raising an objection to birth control. HHS would then contact the insurance company, which would then create a separate contraception policy, which the employer would not pay for.

If you’re thinking this sounds like an elaborate, needlessly complicated shell game, that’s because it is – but in practical terms, it’s not the Obama administration’s fault. Those looking for someone to blame should start with the anti-contraception employers before moving onto Justices Roberts, Scalia, Alito, Thomas, and Kennedy.

Of course, there’s reason to believe this new compromise won’t satisfy opponents of birth control, either, which would mean another round of litigation and court rulings.

That said, Cecile Richards, the president of Planned Parenthood Action Fund, seems to think the Obama administration is on the right track, though congressional action would go a long way towards resolving this mess:

“Once again, we’re reminded of the great lengths opponents are willing to go to put barriers between women and their birth control. While the Obama Administration is working hard to protect women’s access to birth control in the face of harmful Supreme Court decisions, today’s notice also serves as a stark reminder of what is at stake for women in this country when it comes to affordable basic health care. Congress needs to act to protect birth control access. […]

“The revised accommodation has no impact on for-profit corporations like Hobby Lobby that are now allowed to deny birth control coverage to their employees. Women who work at corporations like Hobby Lobby can still be denied birth control coverage, and we are glad to see that the Administration is proposing ways to ensure that these women can get no-co-pay birth control.”

* Disclosure: my wife works for Planned Parenthood, but was not involved in this case and played no role in this report.